The case of S.V.P. v. Bulgaria. Opinions of the Committee on the Elimination of Discrimination against Women dated October 12, 2012. Communication No. 31/2011.
In 2011, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Bulgaria.
The Committee considered that in the present case the State party had failed to comply with its obligation to take positive action in accordance with article 2 of the Convention and to adopt appropriate criminal provisions with a view to effectively punishing the accused of rape and sexual violence and to put them into practice through effective investigation and prosecution. It also failed to take legislative measures capable of providing support and protection to victims of such violence, which constituted a violation of article 2 of the Convention on the Elimination of All Forms of Discrimination against Women.
As could be seen from the text of the Opinions, the author claimed that the State party had failed to act promptly in providing effective protection to the author's daughter from the sexual violence of which she was a victim and its consequences. The author claimed that the State party had failed to ensure her right to effective compensation for the moral damage caused. In addition, as a result of sexual violence, the rights of the author's daughter to health, including reproductive health and education, have been violated and may continue to be violated. The author further claimed that the State party had not provided the author's daughter with adequate rehabilitation and counselling services. The author also claimed that the State party had not taken adequate legislative and policy measures to protect her daughter's rights from the risk of further violence from the perpetrator, since he continued to live in a nearby apartment building. The author further pointed out that her daughter's rights were not protected from stereotypical attitudes towards her as a child with disabilities who had experienced sexual violence, as well as from the perception in society of sexual violence, of which she was a victim, as a mild form of violence, which was facilitated by legislation (paragraph 3.2 of the Opinions).
The Committee's legal position: In accordance with article 2 of the Convention, States parties have an obligation to eliminate discrimination against women of all ages, including girls. The Committee further recalls that the definition of discrimination contained in article 1 of the Convention covers violence against women, as it is violence committed against a woman because she is a woman and has a disproportionate impact on women, and that this definition includes acts causing harm or suffering to the physical, mental or of a sexual nature, the threat of committing such acts, coercion and other forms of infringement of freedom. Gender-based violence can lead to violations of specific provisions of the Convention, regardless of whether these provisions explicitly mention violence. The Committee also recalls its general recommendation No. 19, according to which States parties should take appropriate and effective measures to eliminate all forms of violence against women, whether by public authorities or private individuals. In addition, States parties, in accordance with article 2 of the Convention, may be held responsible for acts committed by private individuals if these States do not take due care to prevent violations of rights or investigate acts of violence, punish perpetrators and pay compensation (paragraph 9.3 of the Opinions).
The Committee recalls that article 2 establishes the obligation of States parties to provide legal protection and repeal or amend discriminatory laws and regulations as part of a policy to eliminate discrimination against women and the obligation to take measures to amend or repeal existing laws, regulations, customs and practices that constitute discrimination against women (paragraph 9.4 of the Opinions).
The Committee recalls that gender-based violence is an extremely serious problem for women's health and that States parties must ensure the adoption and effective application of laws and policies, including rules for medical care and procedures related to hospital stays, in order to combat violence against women and sexual abuse of girls and provide appropriate health services; gender-based professional training so that health workers can identify and address the harmful effects of gender-based violence (paragraph 9.10 of the Opinion).
The Committee notes that article 15 of the Convention enshrines the principle of equality before the law and that, in accordance with this article, the Convention prescribes the protection of women's status before the law, whether as a complainant, witness or victim, and that the above includes the right to adequate compensation in cases of violence, including sexual violence (paragraph 9.11 of the Opinion).
The Committee's assessment of the factual circumstances of the case: the author's daughter was the victim of an act of sexual violence in 2004; the criminal case against the perpetrator of this crime was initiated only on April 17, 2006, that is, almost 2 years after the commission of the crime; the proceedings were terminated in June 2006 after the court approved the agreement between the prosecutor and the accused, which provided for a postponement of the execution of the sentence and did not provide compensation for the pain and suffering suffered by the victim; The decision of the civil court, which ordered the perpetrator to pay compensation for "moral damage", was issued only on February 5, 2008, after the author filed a private civil claim, that is, 4 years after the commission of an act of sexual violence against the author's daughter; the decision could not de facto be enforced using the mechanisms provided for by the domestic law. the right one. In addition, the Committee noted the author's allegations of the State party's inability to provide her daughter with protection from the consequences of sexual violence, including the inability to provide compensation and rehabilitation, which amounted to discrimination against her and hindered the full enjoyment of her human rights, that women and girls in Bulgaria are much more likely than men to suffer from sexual violence violence and the refusal of the State to take serious measures to combat such violence, the main victims of which in Bulgaria are girls, and the failure of the State party to ensure their right to effective compensation for damage caused as a result of violence (paragraph 9.2 of the Opinion).
The Committee further drew attention to the fact that the State party has not provided any explanation for why the act of sexual violence against the author's daughter was prosecuted on charges of indecent assault, and not rape or attempted rape. The Committee considered that the facts of the present case testified to anal penetration of a sexual nature committed by a part of the body of the perpetrator of the act, as well as an attempted rape. The Committee noted that a criminal case was initiated against the perpetrator of the act under article 149 of the Criminal Code, the committed act was not qualified as a serious crime and that the punishment for such acts of sexual violence was not equivalent to the punishment imposed under article 152 of the Criminal Code for rape or attempted rape, and in this case there was and was used the opportunity reaching a settlement agreement. The Committee found with concern that the accused was sentenced to imprisonment for a period of 3 years with a suspended sentence and this punishment turned out to be significantly below the maximum limit established by law. The Committee considered that in the present case, the State party had failed to comply with its obligation to take positive action in accordance with article 2 of the Convention and to adopt appropriate criminal provisions to effectively punish rape and sexual violence and to put them into practice through effective investigation and prosecution of the accused. It has also failed to take legislative measures capable of providing support and protection to the victim of such violence, which constitutes a violation of article 2 of the Convention (paragraph 9.5 of the Opinions).
The Committee noted that in 2006 the State party amended article 149 of the Criminal Code to classify the acts listed in article 149, paragraph 1, of the Criminal Code as "serious crimes" and that it was impossible to reach an amicable agreement on charges brought under this article. However, the Committee pointed out that, despite these legislative changes, the punishment for the act provided for in article 149 of the Criminal Code still remains more lenient than the punishment for rape or attempted rape, and that crimes against sexual integrity continue to be prosecuted as "lewd acts". The Committee further stressed that, in accordance with article 158 of the Criminal Code, the crimes provided for in articles 149-151 and 153 were not punished or the punishment imposed for their commission was not served if a marriage was concluded between a man and a woman before the sentence entered into force. The above-mentioned articles covered cases of indecent assault and rape. The Committee considered that such legislative provisions were not in line with the provisions of the Convention and recalled that in its concluding observations following the consideration of the combined fourth to seventh periodic reports of Bulgaria, it recommended the repeal of article 158 of the Criminal Code. The Committee found that the State party had not revised or repealed the said provision of the law in the light of its obligations under article 2 of the Convention. The Committee further noted that this provision reflects harmful gender stereotypes contrary to article 5 of the Convention (paragraph 9.6 of the Opinions).
The Committee also stressed that the current legislation did not provide for any mechanisms to protect victims of sexual violence from re-victimization, since the perpetrators of such acts returned to society after the completion of criminal proceedings, and that there was no legal mechanism, such as a protective and/or restrictive order, to ensure the protection of victims. The Committee concluded that the absence of such provisions led to a violation of the rights of the author's daughter due to non-compliance with the provisions of article 2 in conjunction with article 3 and article 5, paragraph 1, of the Convention (paragraph 9.7 of the Opinions).
The Committee also took note of the State party's submission on its implementation of various programmes to promote equality between women and men in society, but indicated that the State party had not provided any information on the relationship of these programmes to the situation of girl victims of sexual violence, and in particular to the case of the author's daughter. In particular, no information was provided on measures to combat sexual violence against women and girls and to eliminate the consequences of such violence affecting the enjoyment of the rights enshrined in the Convention. In this regard, the Committee considered that the State party had violated the rights of the author's daughter in relation to articles 2 and 15 of the Convention (paragraph 9.8 of the Views).
The Committee also noted that the State party had not provided any explanation regarding the length of the pre-trial proceedings and, in particular, had not answered the question of why almost 2 years had passed before the perpetrator was charged. The Committee established: Despite the existence of a civil court decision in favor of the victim, to date she has not received adequate monetary compensation for the pain and suffering caused to her and that the legal mechanisms established by the State party did not seem able to ensure that she received such compensation (paragraph 9.9 of the Opinions).
The documents submitted by the author indicate that to date her daughter has received an amount equivalent to 500 euros, although the author and her husband spent BGN 3,000 (1,500 euros) only as part of the enforcement procedure.
The Committee has taken note of the author's complaints, according to which: the State party has not ensured the adoption of legal and policy measures, including rules of medical care and procedures related to hospital stay, in order to combat violence against women and sexual abuse of girls, as well as adequate medical services; the State party has not provided professional training for staff in special cases of sexual violence; As a result of the violence experienced by the author's daughter, she was considered medically disabled; the State party did not provide adequate special medical services. The Committee also took into account the State party's statement that social workers from the child protection services initiated "child monitoring" at the place of residence during the trial, that according to the diagnosis the girl was included in the category of persons with disabilities, that she was transferred to a special school for such children and that the child was a job as a school psychologist. However, the Committee noted that the author disputed the allegation that social workers were involved in her daughter's case. The Committee further noted that the State party had not provided information on any rules for the provision of medical care to the child and procedures related to hospital stay, or medical services provided to the author's daughter immediately after the commission of the act of sexual violence of which she was a victim, and that very little information had been provided regarding the services provided to the victim medical services to address the long-term effects of violence. The Committee concluded that the State party had failed to enforce and apply policies, including rules of medical care and hospital stay procedures, to address the consequences of sexual violence experienced by the victim and that it had failed to provide adequate medical services in her case, and therefore considers that the State party violated the rights of the author's daughter in relation to article 12 of the Convention (paragraph 9.10 of the Opinion).
With regard to the author's complaint of a violation of her daughter's rights under article 15 of the Convention, the Committee noted the State party's submission that the civil court ruled in favor of the plaintiff and awarded compensation for moral damages to the author's daughter, but noted that the State party had not effectively enforced this judgment. The Committee pointed out that the State party had not ensured that a reliable system was in place to provide effective compensation to victims of sexual violence, including compensation for moral damage, and that there was no legal aid scheme in the State party under the executive procedure, even for victims who fall into the category of persons with disabilities because of the experience of sexual abuse, such as the daughter of the author of the message. In this regard, the Committee concluded that the victim's right to effective compensation for non-pecuniary damage under article 15, paragraph 1, in conjunction with article 2 of the Convention, had been violated (paragraph 9.11 of the Opinions).
The Committee's conclusions: The State party has failed to comply with its obligations and thus violated the rights of the author's daughter under article 2 in conjunction with articles 1, 3, 5, 12 and 15 of the Convention (paragraph 10 of the Views).